In a September 21 Thomasville Times-Enterprise article, Deputy Commissioner Billy Hitchens of the Georgia Department of Public Safety partially attributed the state’s police recruitment struggles to “fear[s] of losing qualified immunity.” This fear is unfounded.

According to Hitchens: “You cannot expect police officers to confront dynamic and hostile situations and make split-second decisions without qualified immunity.” This is wrong: Under the Fourth Amendment, officers are already protected from constitutional lawsuits when they make reasonable mistakes. And as the Supreme Court has recognized, an officer’s mistakes are more likely reasonable when they face “split second decisions—in circumstances that are tense, uncertain, and rapidly involving.” Instead, qualified immunity only protects officers that make unreasonable mistakes, including mistakes that are not mistakes at all, but are intentional, malicious acts.

Four other states have already ended qualified immunity, and even in those states, officers have little to fear. Almost always, legal judgments against officers are paid by the state or local government, not the officer. According to a study by UCLA Law Professor Joanna Schwartz, individual officers who were denied qualified immunity paid out of their own pockets in only 0.41% of cases, and they paid just 0.02% of the awards. Specifically in Atlanta, Georgia—one of the worst rated states when it comes to governmental accountability and immunities—an officer is more likely to be struck by lightning than pay a judgment for misconduct.

Multiple factors could explain why Georgia ranks dead last in police officers per capita (according to Hitchens). An abstract fear of losing qualified immunity is not among them.

Christian Lansinger

Institute for Justice